BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090012489 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he has talked to several people that had more infractions than he had, therefore, he does not believe he should have been discharged due to a pattern of misconduct.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant enlisted in the Regular Army on 24 January 1991.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).

3.  The applicant's record reveals a disciplinary history that includes general counseling statements on the following dates:

	a.  6 December 1991 for arriving to work in an unpressed uniform;

	b.  7 January 1992 for failing to be at his appointed place of duty and for his uniform being in an unkept manner;

	c.  4 February 1992 for leaving Express Mail in a bag in excess of 1 week, for holding ration control documents which were over 1 month old, and for the mailroom being filthy and cluttered; and 

	d.  19 February 1992 for failing to turn-in old ration cards.

4.  On 28 February 1992, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to deliver U.S. Mail and Ration Card Applications.

5.  The applicant's record also reveals that he acceptance a general counseling statement on 27 May 1992 for being disrespectful towards his first sergeant (1SG) and for failure to repair.

6.  On 23 June 1992, the applicant accepted NJP under Article 15, UCMJ, for failing to handle mail correctly, for using disrespectful language towards his 1SG, for failure to repair, and for failure to obey a lawful order from his 1SG.

7.  On 26 June 1992, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for pattern of misconduct.  The reasons cited by the commander were the applicant's maintaining an unkept uniform, failure to repair (on several occasions), leaving Express Mail in a bag in excess of 1 week, holding ration control documents which were over 1 month old, failing to maintain the mailroom by keeping it filthy and cluttered, failing to deliver the U.S. Mail and Ration Card Applications, handling mail correctly, using disrespectful language towards his 1SG, and failing to obey a lawful order from his 1SG.



8.  On 26 June 1992, the applicant was advised by counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant  did not submit a statement on his own behalf.

9.  On 9 July 1992, the separation authority approved the recommendation for discharge and directed the applicant receive a general discharge.  On 16 July 1992, he was discharged accordingly after completing 1 year, 5 month, and 23 days of creditable active service with no lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a 
pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he received two Article 15s, he had numerous general counseling statements, he was disrespectful towards his 1SG, and he had numerous violations concerning the mailroom and delivery of the mail.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge.

2.  Both the applicant's characterization of service and his narrative reason for separation are commensurate with the applicant’s overall record of military service.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090012489



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ABCMR Record of Proceedings (cont)                                         AR20090012489



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